[Cites 2, Cited by 0]
Karnataka High Court
Sri M Krishnappa vs Bruhath Bangalore Mahanagara Palike on 2 December, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.1088 OF 2014 (INJ)
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REGULAR FIRST APPEAL NO.1121 OF 2014
IN RFA NO.1088/2014
BETWEEN:
SRI. M. KRISHNAPPA
S/O LATE M. MUNIYAPPA,
AGED ABOUT 68 YEARS,
NO.635 AND 636,
2ND MAIN ROAD, HEBBAL
BENGALURU - 560 024.
NOW RESIDING AT:
NO.14/1, KODIGEHALLI,
BENGALURU - 560 092.
... APPELLANT
Digitally signed by
(BY SRI. SAMMITH S., ADVOCATE)
ARUNKUMAR M S
Location: HIGH AND:
COURT OF
KARNATAKA
1. BRUHATH BANGALORE MAHANAGARA PALIKE
J.C. ROAD, N.R. SQUARE,
BENGALURU - 560 002.
BY ITS COMMISSIONER.
2. THE EXECUTIVE ENGINEER
BRUHATH BENGALURU MAHANAGARA PALIKE,
BYATARAYANAPURA SUB-DIVISION,
BENGALURU - 560 065.
... RESPONDENTS
(BY SRI. S.N. PRASHANTH CHANDRA, ADVOCATE )
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THIS REGUALR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL
PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED
25TH APRIL, 2014 PASSED IN ORIGINAL SUIT NO.583 OF 2009
ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE,
BENGALURU CITY, DISMISSING THE SUIT FOR DECLARATION
AND PERMANENT INJUNCTION.
RFA NO.1121 OF 2014
BETWEEN:
SRI. M. KRISHNAPPA
S/O LATE M. MUNIYAPPA,
AGED ABOUT 68 YEARS,
NO.635 AND 636,
2ND MAIN ROAD, HEBBAL
BENGALURU - 560 024.
NOW RESIDING AT:
NO.14/1, KODIGEHALLI,
BENGALURU - 560 092.
... APPELLANT
(BY SRI. SAMMITH S., ADVOCATE)
AND:
1. BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST,
BENGALURU - 560 020.
BY ITS COMMISSIONER.
2. STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
MULTI-STORIED BUILDING,
BENGALURU - 560 001.
3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES
ALI ASKAR ROAD,
BENGALURU - 560 001.
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4. DEFENSE EMPLOYEES HOUSING
CO-OPERATIVE SOCIETY LTD.,
BY ITS SECRETARY,
NO.173, SMAPIGE ROAD,
MALLESWARAM,
BENGALURU - 560 003.
5. MINISTRY OF COMMUNICATIONS
EMPLOYEES CO-OPERATIVE HOUSING
SOCIETY LIMITED,
NO.33, SERPENTINE ROAD,
KUMAR PARK WEST EXTENSION,
BENGALURU - 560 020.
BY ITS PRESIDENT.
6. SRI. Y.R. JANARDHAN RAO
S/O LATE D.L. RAMAIAH,
AGED ABOUT 65 YEARS.
7. SRI. P.R. PRASAD RAJU
S/O P.S.N. RAJU,
AGED ABOUT 64 YEARS.
RESPONDENTS NO.6 AND 7 ARE
RESIDING AT: NO.167,
36TH CROSS, 18TH MAIN,
4TH 'T' BLOCK, JAYANAGAR,
BENGALURU - 560 041.
... RESPONDENTS
(BY SRI. K. KRISHNA, ADVOCATE FOR
SRI. VASANTH, ADVOCATE FOR R1;
SRI. HANUMANTHARAYA LAGALI, AGA FOR R2 AND R3;
RESPONDENT NO.6 - SERVED;
V/O DATED 17.03.2016, APPEAL IN RESPECT OF
R4, R5, R7 IS DISMISSED)
THIS REGUALR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL
PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED
25TH APRIL, 2014 PASSED IN ORIGINAL SUIT NO.7995 OF
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2006 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL
JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR
DECLARATION AND INJUNCTION.
THESE REGULAR FIRST APPEALS HAVING BEEN
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT,
THIS DAY, E.S. INDIRESH J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
CAV JUDGMENT
These appeal are filed by the plaintiff challenging the
judgment and decree dated 25th April, 2014 passed in Original
Suit No.583 of 2009 and Original Suit No.7995 of 2006 on the
file of the XXVII Additional City Civil Judge, Bengaluru (for
short, hereinafter referred to as 'Trial Court'), dismissing the
suits filed by the plaintiff, seeking relief of declaration and
injunction.
2. For the sake of convenience, parties in this appeal
are referred to as per their raking before the Trial Court in
Original Suit No.7995 of 2006.
3. The facts in nutshell for adjudication of these
appeals are that the plaintiff filed suits seeking relief of
declaration with consequential relief of permanent injunction
against the defendants in respect of the suit schedule property.
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It is averred in the plaint that the grandfather of the plaintiff
viz., Maistri Subba Hanumaiah had purchased the land to an
extent of 4 acre 20 guntas in Survey No.14 of Kodigehalli
Village, Yelahanka Hobli, Bengaluru North Taluk, as per the
registered Sale Deed dated 15th February, 1936. Thereafter,
the registered Deed of Settlement dated 22nd December, 1939
was executed by the grandfather of the plaintiff in favour of his
two brothers namely Marappa and Byanna; and his son M.
Muniyappa (father of the plaintiff) to an extent of one-third
share each. It is further stated that, in terms of the Deed of
Settlement dated 22nd December, 1939, name of Marappa and
his wife Doddamma and Byanna and his wife Akkayamma along
with Muniyappa (father of the plaintiff) and his wife
Hucchamma were entered to an extent of one-third share each
in the total extent of 4 acre 33 guntas. It is also stated that
the total extent of land bearing Survey No.14 of Kodigehalli
Village was measuring 14 acre 33 guntas, wherein, as per the
registered Sale Deed dated 15th February, 1936 said to have
been purchased by Maistri Subba Hanumaiah (grandfather of
the plaintiff) has been given new Survey No.14/1 after the re-
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survey made on 13th February, 1938 by the Department of
Land Records.
4. It is also averred in the plaint that the Revenue
Records stand in the name of the grandfather of the plaintiff
and land to an extent of 23 guntas in 1 acre 24 guntas
belonging to the father of the plaintiff was notified for
acquisition in favour of Ministry of Communications Employees
Co-operative Housing Society Ltd. (defendant No.5). It is
further contended that, after acquiring 23 guntas out of 1 acre
24 guntas, remaining extent of 1 acre 1 gunta was in
possession of the father of the plaintiff. The father of the
plaintiff died during the year-1990 and thereafter, the plaintiff
succeed to the estate left behind by his father. It is further
averred that the defendant No.6 had filed Writ Petition No.5776
of 1993 before this Court with regard to the acquisition
proceedings and the identity of the land in question, which was
discussed and thereby, the writ petition came to be dismissed
by this Court on 23rd June, 1997. Thereafter, Writ Appeal
No.3949 of 1997 was filed and this Court, by order dated 04th
November, 1997, held that the defendant No.5-Soceity is
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entitled for 23 guntas of land in Survey No.14/1 of Kodigehalli
Village and directed to identify the area left by the respondent-
Bangalore Development Authority for the purpose of Civic
Amenities. It is the grievance of the plaintiff that the
defendant-Society had created concocted documents in favour
of the defendant-Bangalore Development Authority and as
such, the plaintiff filed Original Suit No.7995 of 2006, seeking
relief of declaration with consequential relief of injunction. It is
also averred in the plaint that the father of the plaintiff filed
Original Suit No.2076 of 1985, which came to be disposed of in
his favour by awarding one-third share.
5. It is further stated in the plaint that the defendant-
Bangalore Development Authority notified acquisition of 23
guntas in Survey No.14/1; 23 guntas in Survey No.14/2; and 2
acre 12 guntas in Survey No.14/3 in favour of the defendant
No.5-Society. It is also stated that the father of the plaintiff
filed Writ Petition No.14951 of 1985, which came to be allowed
on 15th March, 1991. Thereafter, on account of the settlement
by the defendant No.5-Society, this Court directed the
defendant No.5 to pay one-third of compensation amount to
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the father of the plaintiff in LAC No.214/1985-86. It is also
stated that the father of the plaintiff died during the year-1990
and thereafter, the defendant No.6 had created certain
documents to knock-off the property and filed Writ Petition
No.5776 of 1993 against the plaintiff, defendant No.1-
Bangalore Development Authority and the defendant No.5-
Society claiming that, he had purchased the land measuring 2
acre 35 guntas. Thereafter, Writ Petition No.5776 of 1993 came
to be dismissed on 23rd June, 1997 against which, Writ Appeal
No.3949 of 1997 was filed and this Court, in the said appeal,
held that the defendant No.5-Society shall make use of 23
guntas of land only and also directed to identify the area left by
the defendant-Bangalore Development Authority for Civic
Amenities.
6. It is further pleaded in the plaint that the land
bearing Survey No.14 is measuring 4 acre 33 guntas, in which,
the father of the plaintiff got one-third share i.e., 1 acre 24
guntas retained for his possession and further the uncles of the
father of the plaintiff have sold their portion by creating third
party rights. Therefore, it is contended that the father of the
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plaintiff has restricted his claim for 1 acre 24 guntas in Original
Suit No.2076 of 1985. It is further stated that the defendant
No.5-Society restricted its claim for 23 guntas and therefore,
the plaintiff become absolute owner to an extent of 1 acre 1
gunta by excluding 23 guntas which had been acquired for the
defendant No.5-Society. It is further stated that the
defendants 6 and 7 have created the registered Sale Deeds
dated 09th September, 1983 and 30th May, 1984 and another
Sale Deed dated 20th April, 1991 in favour of the defendant
No.4 despite the fact that the defendants 6 and 7 were not the
agriculturists and also not the members of the defendant No.5-
Society. It is further stated in the plaint that the defendant
No.2 notified the land for acquisition in favour of defendant
No.5-Society and thereafter, the defendant No.1-Bangalore
Development Authority had fenced the schedule property.
Being aggrieved by the same, the plaintiff caused legal notice
dated 05th April, 2006. It is further averred that the land was
handed over to the defendant-Bruhat Bengaluru Mahanagara
Palike despite the fact that the plaintiff is in possession of the
land in question. Hence, the plaintiff filed instant suits, seeking
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relief of declaration and consequential relief of permanent
injunction against the defendants.
7. After service of summons, the defendant No.1-
Bangalore Development Authority filed written statement and
took-up a specific plea that the suit is not maintainable as the
earlier Original Suit No.2076 of 1985 is dismissed and
therefore, the instant suits are barred under Section 11 of the
Code of Civil Procedure. It is further stated in the written
statement that the suit property is no longer an agricultural
land and therefore, the defendant No.5-Society had acquired an
area of 23 guntas in land bearing Survey No.14/1, 23 guntas in
Survey No.14/2 and 2 acre 12 guntas in Survey No.14/3. It is
also stated that the original Kathedars had received
compensation pursuant to the issuance of award and therefore,
sought for dismissal of the suits filed by the plaintiff. Further, it
is contended by the defendant-Bangalore Development
Authority that the Sale Deeds have been executed by
defendants 6 and 7 and in furtherance of the same, Layout Plan
has been approved and Relinquishment Deed was executed on
02nd September, 1982 in favour of the defendant-Bangalore
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Development Authority for allotment of land for Civic
Amenities, so also, the land in question situate within the limits
of defendant-Bruhat Bengaluru Mahanagara Palike.
Accordingly, sought for dismissal of the suits.
8. The defendant No.5-Society filed separate written
statement urging more or less contentions raised by the
defendant-BDA and further contended that the defendant No.5-
Soceity is in possession of 23 guntas. It is also stated in the
written statement that the plaintiff has entered into an
agreement with the defendant No.5-Society, which is
suppressed in the suit. Accordingly, sought for dismissal of the
suits.
9. The Trial Court, based on the pleadings on record,
formulated the following issues and additional issues for its
consideration and recorded common evidence in the suits:
"ISSUES IN O.S.7995/2006:
(1) Whether the plaintiff proves that his family is the
owner and in possession of the suit schedule
property since from his grandfather as alleged in
the plaint?
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(2) Whether the plaintiff further proves that the
alleged relinquishment deed alleged to have
executed by defendants 6 and 7 in favour of 4th
defendant and the alleged relinquishment deed by
5th defendant in favour of first defendant
pertaining to the suit schedule property dated
2/9/1992 and 6/1/1992 are null and void and are
created documents so also are not binding on him
as alleged in the plaint?
(3) Whether the plaintiff further proves that the sale
deed dated 20/4/1991 alleged to have been
executed by 6th and 7th defendants in favour of
4th defendant and sale deeds dated 27/5/1984
and 31/5/1984 alleged to have been executed in
favour of 6th and 7th defendants relating to suit
schedule property are null and void and not
binding on him as alleged in the plaint?
(4) Whether defendant no.5 proves that the valuation
so made by the plaintiff and payment of court fee
so did by the plaintiff is not proper as contended
in his written statement?
(5) Whether defendant No.5 further proves that suit
schedule property; was already acquired and it is
5th defendant who is possession of suit schedule
property as contended in his written statement?
(6) Whether the description of the suit schedule
property and situation is properly made by the
plaintiff?
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(7) Whether defendant No.5 proves that the claim of
the plaintiff so made in the plaint is hopelessly
barred by time?
(8) Whether the plaintiff proves the alleged
interference by defendants in to his possession
and enjoyment of the suit schedule land?
(9) Whether the plaintiff is entitled for the relief of
declarations as prayed?
(10) Whether the plaintiff is entitled for permanent
injunction as prayed?
(11) What decree or order?
ADDITIONAL ISSUES:
(1) Whether the defendant No.1 proves that the
present suit of the plaintiff is hit by the provisions
of res judicata as contemplated u/s 11 of C.P.C. in
view of judgment passed in O.S.No.2076/1985 as
contended in the written statement?
(2) Whether plaintiff proves the existence of suit
schedule property; as on the date of the suit as
described in the plaint?
ISSUES IN O.S.583/2009:
(1) Whether the plaintiff proves his lawful possession
over the suit schedule property as on the date of
suit?
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(2) Whether the plaintiff further proves that the
defendants have illegally interfered with his lawful
possession over the suit schedule property as
alleged?
(3) Whether the defendants prove that the BDA has
acquired the land in Sy.No.14/1 of Kodigehalli
village including the suit schedule property; and
the acquired property vests with it as alleged?
(4) Whether the defendants further prove that the
suit schedule property is reserved for the purpose
of formation of park and it was handed over to it
by the BDA as alleged?
(5) Whether the plaintiff is entitled to the relief of
permanent injunction against the defendants as
prayed?
(6) To what reliefs, if any, the parties are entitled?
10. The plaintiff examined himself as PW1 and got
marked 37 documents as Exhibits P1 to P37. On the other
hand, defendants examined 3 witnesses as DW1 to DW3 and
got marked 31 documents as Exhibits D1 to D31.
11. The Trial Court, after considering the material on
record, by its judgment and decree dated 25th April, 2014,
dismissed the suits. Being aggrieved by the same, the plaintiff
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preferred Regular First Appeal No.1088 of 2014 against the
judgment and decree passed in Original Suit No.583 of 2009
and Regular First Appeal No.1121 of 2014 against the judgment
and decree passed in Original Suit No.7995 of 2006.
12. Heard Sri. Sammith S., learned counsel appearing
for the appellant; Sri. S.N. Prashanth Chandra, learned counsel
appearing for respondents in R.F.A. No.1088 of 2014; Sri. K.
Krishna, learned counsel on behalf of Sri. Vasanth, appearing
for the respondent No.1; Sri. Hanaumantharaya Lagali, learned
Additional Government Advocate appearing for respondents 2
and 3 in R.F.A. No.1121 of 2014.
13. Sri. Sammith S., learned counsel appearing for the
appellant argued that the finding recorded by the Trial Court
that the suit is hit by res judicata in view of judgment and
Decree passed in Original Suit No.2076 of 1985 is incorrect as
the plaintiff is entitled for one-third share in land bearing
Survey No.14 of Kodigehalli Village measuring 4 acre 33 guntas
as per the registered Deed of Settlement dated 22nd December,
1939. By referring to schedule in Original Suit No.2076 of 1985
and the schedule in present suits, learned counsel appearing
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for the appellant contended that the finding recorded by the
Trial Court makes it clear that the Trial Court has not properly
appreciated the material on record in a right perspective as the
schedule to the suits is distinct. Nextly, it is contended by
learned counsel appearing for the appellant that the Trial Court
committed an error in arriving at a conclusion that the entire
extent of 1 acre 24 guntas is acquired and the said finding is
contrary to order passed by this Court in Writ Appeal No.3949
of 1997. It is further argued by the learned counsel appearing
for the appellant that the finding recorded by the Trial Court in
respect of earlier transactions at Exhibits D16 to D20, which
are not related to the suit schedule property to an extent of 1
acre 24 guntas belonging to the plaintiff and therefore, said
finding is contrary to law.
14. Learned counsel appearing for the appellant further
argued that, as the total extent of land is 1 acre 24 guntas and
even after ignoring the 23 guntas which has been acquired by
the defendant-Bangalore Development Authority, the plaintiff is
having 1 acre 1 gunta and therefore, the said aspect of the
matter was ignored by the Trial Court without looking into the
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endorsement issued by the Assistant Director of Land Records
at Exhibit-P20. Learned counsel further contended that the Trial
Court has misconstrued the fact that the plaintiff had accepted
the compensation in respect of 23 guntas. Accordingly, learned
counsel appearing for the appellant contended that the
impugned judgment and decree passed by the Trial Court is
contrary to order passed by this Court in Writ Petition No.14951
of 1985 and Writ Appeal No.3949 of 1987 and therefore, he
sought for interference of this Court.
15. Per contra, Sri. K. Krishna, learned counsel
appearing for the respondent-Bangalore Development Authority
refers to the revenue records at Exhibits P9 and P21 and
submitted that there is discrepancy with regard to the extent of
the land belonging to the plaintiff. He further, invited the
attention of the Court to the examination-in-chief of the PW1
and submitted that the name of the grandfather of the plaintiff
was notified in respect of entire Survey Nos.14/1, 14/2 and
14/3. It is further argued by the learned counsel appearing for
the respondent-Bangalore Development Authority that, in
cross-examination dated 14th February, 2011, admission has
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been made by the plaintiff in respect of the possession of the
entire land to an extent of 4 acre 20 guntas and further the
acquisition of the land by the defendant-Bangalore
Development Authority in favour of the defendant No.5-Society.
It is also argued by learned counsel appearing for the
respondent-Bangalore Development Authority that the entire
land bearing Survey Nos.14/1, 14/2 and 14/3 was acquired as
per Notification dated 28th April, 1983 (Exhibit-P10) to an
extent of 23 guntas each in 6 bits of land and therefore, no
interference be called for in these appeals. By referring to the
Exhibit D12-Layout Plan, learned counsel appearing for the
respondent-Bangalore Development Authority submits that,
Official Memorandum dated 09th March, 1987 was issued,
wherein conversion has been accorded and therefore, as the
nature of land has been changed, no interference be called for
by this Court. He further invited the attention of the Court to
schedule to the Relinquishment Deed (Exhibit-D14), wherein
certain land was earmarked for Civic Amenities after
distribution to the members of the defendant No.5-Society and
therefore contended that the Trial Court after considering the
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material on record, rightly dismissed the suits. Accordingly, he
sought for dismissal of the appeals.
16. Sri. S.N. Prashanth Chandra, learned counsel
appearing for the respondent-Bruhat Bengaluru Mahanagara
Palike submits that the defendant-Bangalore Development
Authority had acquired the land and handed over to the
respondent-Bruhat Bengaluru Mahanagara Palike for
development of Civic Amenities. Accordingly, he sought for
dismissal of appeals.
17. In the light of submission made by learned counsel
appearing for the parties and on careful examination of
arguments advanced by learned counsel appearing for the
parties, the points arises for consideration in these appeals are
as follows:
1) Whether the suits are hit by Section 11 of Code
of Civil Procedure in view of judgment and
decree passed in Original Suit No.2076 of
1985?
2) Whether the judgment and decree passed by
the Trial Court requires interference as to the
change in nature of the land in question?
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3) Whether the interference is called for in this
appeal in view of the acquisition of land by the
defendant-Bangalore Development Authority in
favour of the defendant No.5-Society?
4) Whether the plaintiff has proved his title to an
extent of 1 acre 24 guntas of land before the
Trial Court?
5) Whether the judgment and decree passed by the
Trial Court requires interference?"
18. The aforesaid points are inter-related and requires
to be answered together in respect of the right of the plaintiff
over the suit schedule property and therefore, same is
answered together accordingly. It is the case of the plaintiff
that the grandfather of the plaintiff viz., Maistri Subba
Hanumaiah had purchased land to an extent of 4 acre 20
guntas in Survey No.14 of Kodigehalli Village, Bengaluru North
Taluk as per the registered Sale Deed dated 15th February,
1936 (Exhibit-P1) and resurvey has been made on 13th
February, 1938 and as such, the survey number was
renumbered as 14/1 to an extent of 4 acre 33 guntas as the
grandfather of the plaintiff was in possession of entire extent
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and therefore, boundary has been fixed by showing
measurement as 4 acre 33 guntas. Thereafter, the grandfather
of the plaintiff executed registered Settlement Deed dated 22nd
December, 1939 (Exhibit-P2) in to three shares equally in
favour of his brothers viz., Marappa and Byanna as well as in
favour of his son by name, Muniyappa (father of the plaintiff).
It is the case of the plaintiff that, his father Muniyappa got one-
third share in the total extent of 4 acre 20 guntas. Thereafter,
the revenue records changed in favour of Marappa, Byanna and
Muniyappa to an extent of 1 acre 24 guntas each. In the
meanwhile, the defendant-Bangalore Development Authority
had initiated acquisition proceedings in favour of defendant-
Society and as such, Preliminary Notification was issued on 28th
April, 1983 (Exhibit-P10) and Sl.No.66 in the Preliminary
Notification refers to the land pertaining to Survey No.14 and
its bifurcations, which reads as under:
"66 Maistri Subbahanumaiah Anjanappa 14/1 0-23
Anjanappa s/o Muniramappa B.M. Narayanappa 14/2 0-23
B.M. Narayanappa S/o Shamanna, Pillappa 14/3 0-23
Muninanjappa Shamanna S/o Chinnappa 0-23
Munirayappa, Pillappa S/o B.M. Rajanna 0-23
Muninanjappa, Chinnappa M. Nanjundappa 0-23"
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19. Thereafter, the respondent-Authorities issued Final
Notification on 28th February, 1985 (Exhibit-P28 and P28(a))
and Sl.No.62 refers to Survey No.14/1, 14/2 and 14/3, which
reads as under:
"66 Maistri Subba Hanumaiah Anjanappa 14/1 0-23
Anjanappa s/o Muniramappa B.M. Narayanappa
B.M. Narayanappa S/o Shamanna, Pillappa 14/2 0-23
Muninanjappa Shamanna S/o Chinnappa,
Munirayappa, Pillappa S/o B.M. Rajanna
Muninanjappa, Chinnappa M. Nanjundappa 14/3 2-12
B.M. Rajanna N. Rayarajappa
20. In both the Notifications, land to an extent of 23
guntas is acquired in Survey No.14/1 of Kodigehalli Village,
Bengaluru North Taluk. Therefore, it is to be concluded that the
father of the plaintiff is in possession of 1 acre 1 guntas
excluding 23 guntas, which has been acquired by the
defendant-Bangalore Development Authority. It is also to be
noted that, in Original Suit No.2076 of 1985 filed by the father
of the plaintiff M. Muniyappa, wherein schedule to the suit
reads as under:
"SCHEDULE
The land bearing Sy.No.14/1 (Fourteen/one)
measuring 4 (four) acres 33 (thirty three) guntas situated at
Kodigehalli, Yelahanka Hobli, Bangalore North, Bangalore,
bounded on the:
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East by : the land bearing Sy.No.17 (seventeen)
West by : land bearing Sy.No.13 (thirteen);
South by : The part of the sam`e land bearing
Sy.No.14 (fourteen), and
North by : Boundaries of Kayam Gutha
Kothihoshallai, and boundaries of
Byatarayanapura."
21. In the said suit, the Trial Court, by judgment and
decree dated 30th November, 2002 (Exhibit-D4) dismissed the
suit as to the relief claimed by the father of the plaintiff for
declaration with consequential relief. I have carefully examined
the finding recorded by the Trial Court in the above case in
respect of 4 acre 20 guntas, however, in the present case, the
schedule to the plaint is to an extent of 1 acre 1 gunta and the
schedule reads as under:
"SCHEDULE
The land bearing Sy.No.14/1, measuring 1 Acre 1
Gunta out of 4 Acre 33 guntas (including 0.4 guntas Karab)
towards Eastern side i.e., adjoining to Arvind Archad
Apartments, Situated at Kodigehalli Village, Yelahanaka Hobli,
Bangalore North Taluk, Bangalore, bounded on -
East by - Portion of survey No.14/1 of Arvind
Archad Apartments;
West by - Road formed in portion of survey
by the Ministry of Communications
Employees Co-operative Housing Society
Limited;
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North by - Byatarayanapura Gadi and Area of
Ministry of Communications Employees
Co-op. Housing Society Limited; and
South by - Kodigehalli - Thindlu Main Road."
22. Therefore, the finding recorded by the Trial Court at
Paragraphs 24 and 25 that the suits are hit by principles of res
judicata is incorrect as there is a difference in the extent of
land in schedule to both the suits and therefore, the finding
recorded by the Trial Court on additional issues requires to be
set-aside. It is not in dispute as to the fact that the
grandfather of the plaintiff viz., Maistri Subba Hanaumaiah had
purchased the land to an extent of 4 acre 20 guntas in Survey
No.14 of Kodigehalli Village and thereafter, as per the
registered Settlement Deed dated 22nd December, 1939, one-
third of the total extent of 4 acre 20 guntas i.e., an extent of 1
acre 24 guntas was allotted to the share of the father of the
plaintiff. The said aspect is not disputed by either of the
parties and the revenue records i.e., RTC extracts reflects the
name of the father of the plaintiff.
23. It is relevant to extract the observation made by
this Court in Writ Appeal No.3949 of 1997 decided on 12th
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November, 1997 (Exhibit P25) at paragraph 3, which reads as
follows:
"3. Keeping in view, the facts and circumstances of
the case, that appeal is disposed of by observing that
the respondent No.2/Socieity shall be at liberty to
occupy and utilise 23 guntas of land comprising
sy.no.14/1. which has been acquired b the Government
and duly allotted to it by the Bangalore Development
Authority. It shall have no right to trespass into the
land transferred to the Bangalore Development
Authority by way of relinquishment deed. The
Bangalore Development Authority shall take steps fro
identifying the aforesaid land, the subject matter of the
relinquishment deed and protecting and preserving it as
a civic amenity site. The Bangalore Development
Authority shall be at liberty to seek the assistance and
co-operation of any other Department, if so required for
determining the location of the relinquished land. The
appellants shall be at liberty to assist the Bangalore
Development Authority in locating and identifying the
land and for that purpose may produce any document
upon which it relies including Annexure-'L'. Upon
identification of the land the Bangalore Development
Authority shall be at liberty to modify the lay-out plan of
the appellant, if so required and permissible under law."
(emphasis supplied)
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24. Having taken note of the observation made by the
Division Bench of this Court in Writ Appeal No.3949 of 1997, it
is clear that, the defendant-Bangalore Development Authority
was directed to identify the extent of land acquired bearing
Survey No.14/1. Therefore, taking into consideration the fact
that, there is no dispute as to arriving at a conclusion that the
plaintiff is the owner of the schedule property to an extent of 1
acre 1 gunta (after excluding the land acquired to an extent of
23 guntas), and further as the defendant-Bangalore
Development Authority has not identified the land as observed
by this Court in the above writ appeal, I am of the opinion that
the finding recorded by the Trial Court on issue No.1 requires to
be set-aside by this Court.
25. It is also pertinent to mention here that, the PW1
deposed that 23 guntas of land has been acquired in favour of
the defendant No.5-Society and same is reiterated in the cross-
examination dated 14th February, 2011. The DW1-Assistant
Executive Engineer of the defendant-BDA in the cross-
examination dated 09th August, 2012 at paragraphs 8 and 9
deposed as follows:
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"8. It is true to suggest that defendant No.5
has acquired 23 guntas of land in Sy.No.14/1 of
Kodigehalli village by virtue of Ex.P10 the acquisition
notification. In the said Ex.P10 the said survey number
is at Sl.No.66. For identification purpose it is marked at
Ex.P10(a). In Ex.P10 name of khatedhar shown as
Mastri Subba Hanumaiah. It is true to suggest that
there was final notification in respect of the said
property that there was final notification in respect of
the said property as per Ex.P28 i.e., final notification
now shown to me. The said Sy.No.14/1 at Sl.No.62. for
identification purpose it is marked at Ex.P28(a). It is
true to suggest that along with Sy.No.14/1, the
Sy.N0.14(2) and 14/3 of Kodigehalli village also have
been acquired by defendant No.5 to the extent of 23
guntas and 2 acres 12 guntas respectively. It is true to
suggest that after acquisition of 23 guntas of land in
Sy.No.14/1 of Kodigehalli village, the remaining 1 acre 1
guntas remained on acquired.
9. The defendant No.4 has not acquired any of
the portions of Sy.No.14/1. Defendant No.4 has
executed relinquishment deed in favour of Bangalore
Development Authority. But I cannot say that how
defendant No.4 acquired in Sy.No.14/1 of Kodigehalli
village. It may be true that writ petition was filed by
defendant No.4 against the 5th defendant co-operative
society in W.P.No.5776/93 no right to execute any
relinquishment in favour of defendant No.1 Bangalore
Development Authority as per observations of the
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Hon'ble High Court of Karnataka in the orders of the
aforesaid writ petition."
(emphasis supplied)
26. At paragraph 13, DW1 admits the possession of the
plaintiff in the schedule property as the plaintiff has put-up
shed in the suit schedule property. Perusal of the evidence of
the DW2 would indicate that, 23 guntas of land belonging to
the plaintiff has been acquired by the defendant-Bangalore
Development Authority. In the cross-examination dated 21st
January, 2023, DW2 deposed as follows:
"4. Out of Sy.No.14/1 of Kodigenahalli village 23
guntas of land was proposed to be acquired by the
government for the benefit of defendant No.5 society.
The total extent of Sy. No.14/1 is 3 acres 18 guntas. As
per records I cannot say the total extent of the said
survey number. It is true to suggest that except the 23
guntas of land which is acquired for the benefit of
defendant No.5. The defendant No.5 has no other right
in the remaining extent of the said survey number."
(emphasis supplied)
27. Having re-appreciated the material on record, the
land to an extent of 23 guntas out of 1 acre 24 guntas has
been acquired by the defendant-Bangalore Development
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Authority in favour of the defendant No.5-Society and the
remaining extent of 1 acre 1 gunta is in possession of the
plaintiff. In that view of the matter, the finding recorded by the
Trial Court to dismiss the suits without appreciating the
schedule mentioned in Original Suit No.2706 of 1985 (Exhibits
D25 and D26) and also order passed by this Court in Writ
Appeal No.3949 of 1987 (Exhibit P25) is contrary to records
and as such, impugned judgment and decree requires to be
interfered with in these appeals. It is pertinent to mention here
that, pursuant to the direction issued by this Court in Writ
appeal, no steps have been taken by defendant-Bangalore
Development Authority to ascertain the actual extent of land
which has been acquired in favour of the defendant No.5-
Society and no material is produced by the defendant-
Bangalore Development Authority as to the compliance of the
order passed in writ appeal. Having arrived at a conclusion
that the plaintiff has proved his title and possession in respect
of the schedule property to an extent of 1 acre 1 gunta in land
bearing Survey No.14/1 of Kodigehalli Village, the defendants
in Original Suit No.583 of 2009 shall be restrained from
interfering with the suit schedule property.
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28. Nextly, it is pertinent to mention here that, as per
Official Memorandum dated 09th March, 1987 (Exhibit D11), the
subject land seeking conversion for non-agricultural purpose is
pertaining to the Survey No.13/1, 13/2 and 14/1 of
Kothihosahalli and Kodigehalli Villages, Yelahanka Hobli,
Bengaluru North Taluk, wherein sanction was accorded for
alienation of 8.04 acres under Section 95 of Karnataka Land
Revenue Act and in the said conversion order at Exhibit D11,
nothing is forthcoming as to the total extent of land converted
in land bearing Survey No.14/1 and that apart, the said
conversion order has been made at the instance of Y.B.
Janardhan Rao and P.R. Prasad Raju (defendants 6 and 7
herein) and the defendant No.6 was placed ex-parte before the
Trial Court. Defendant No.5-Society has not contested the suit
on merits. That apart, no RTC extracts have been produced by
the defendants as to the change of nature of land in RTC
extracts and the said fact would indicate that the finding
recorded by the Trial Court that the nature of the land is
changed from agriculture to non-agriculture purpose cannot be
accepted. Therefore, finding recorded by the Trial Court on this
aspect requires to be set-aside by this Court. In the backdrop
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of this analysis based on record, it could be concluded that,
only to an extent of 23 guntas out of 1 acre 24 guntas in
Survey No.14/1 was acquired in favour of the defendant No.5-
Society (Exhibit D5) and as such, remaining extent of 1 acre 1
gunta continue with the possession of Muniyappa (father of the
plaintiff) and therefore, the finding recorded by the Trial Court
on this aspect is to be rectified based on the observation made
above. For the foregoing reasons, the finding recorded by the
Trial Court requires to be interfered with as the same is
answered without assessing the material on record in the right
perspective. Therefore, the points for consideration referred to
above favours the plaintiff as the Trial Court had committed a
serious error in not appreciating the material on record in the
right perspective. Hence, I pass the following:
ORDER
i) Regular First Appeals are allowed;
ii) Judgment and decree dated 25th April, 2014
passed in Original Suit No.7995 of 2006 and
Original Suit 583 of 2009 on the file of the
XXVII Additional City Civil Judge, Benglauru
City is hereby set-aside;
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iii) Original Suit Nos.7995 of 2006 and 583 of
2009 filed by the plaintiff are hereby decreed.
Plaintiff is declared as owner in possession of
the suit schedule property; consequently,
defendants are restrained from interfering
with the suit schedule property.
SD/-
(E.S. INDIRESH)
JUDGE
ARK
List No.: 1 Sl No.: 55
